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Back to the Drawing Board

You might assume that a design professional has the exclusive rights to any drawings or blue prints which he or she creates. But in fact there are exceptions. Much depends on the actual circumstances surrounding their production.

In many countries, copyright protection extends to plans, drawings and designs, and generally benefits the specific author of a particular work. While registering drawings with a governmental office isn’t necessary to obtain copyright protection, it is usually helpful to obtain damages and attorney’s fees for a claimed infringement. Works for hire on the other hand, prepared by an employee within the scope of his or her employment or under a specific commission as part of a larger work, are generally not susceptible to such protection. Work produced by a professional in the course of his or her employment will customarily be owned by that person’s employer. Of course, if the professional is working as an independent contractor or if an agreement states otherwise, then the work for hire exception may not apply. A careful review of applicable circumstances and documents is always recommended.

While registering drawings with a governmental office isn’t necessary to obtain copyright protection, it is usually helpful to obtain damages and attorney’s fees for a claimed infringement. Work produced by a design professional in the course of his or her employment will customarily be owned by that person’s employer.

Look at the language surrounding the actual request for the project drawings. This often addresses ownership. These type of agreements generally have specific provisions noting that drawings and specifications will remain the property of the person or firm creating the work. Even without such restrictive language, courts have generally noted that design professionals own their drawings. While it is disfavored for an owner to use a professional’s drawings prepared for one project on another different project, one would do well to prevent the potential for such misunderstandings by negotiating appropriate contract language and address ownership as specifically as possible. Owners can become quite disappointed seeing the design of their signature building duplicated in another city or town – a design which they thought they paid their design professional to create just for them.

Ownership of those plans for a unique design shouldn’t ever be presumed, by either the author or the one commissioning the work. Rather, one would do well to look at the actual circumstances surrounding the work and the documents detailing the production of the creative work.

Last modified onTuesday, 24 December 2013 08:56
Patrick C. Barthet

Mr. Barthet is founder and President of The Barthet Firm, a seasoned 10 lawyer commercial law practice located in Miami, Florida (www.barthet.com). He was appointed Honorary Consul of Malta in 2008 and regularly represents entrepreneurs and established concerns in all manner of contract law, intellectual property issues and business disputes. He can be reached at pbarthet@barthet.com.

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